ICE returned smuggled antiquities to Afghanistan
during a photo-op held in Washington, DC in 2013.
No prosecutions resulted from the case.

Newly
obtained documents released by Immigration and Customs Enforcement (ICE) reveal
that ICE Homeland Security Investigations (HSI) investigated a
suspicious shipment of cultural heritage objects imported into the United
States, but no prosecutions resulted.

In 2011, U.S. Customs and Border
Protection (CBP) and the HSI New YorkEl
Dorado Task Force (EDTF) seized a falsely labeled package that bore the hallmarks of antiquities trafficking. ICE
investigators voiced concern about the possibility of money laundering,
ties to terrorism, and how the same importers already had been involved in
previous investigations. Meanwhile, they openly spoke about artifacts pouring out of Afghanistan and Pakistan. Authorities seized the goods because of violations of federal law, including the
commission of felony crimes.

Yet the investigation produced no arrests, no
indictments, no prosecutions, and no convictions even for those who lied on the
customs forms. In fact, the newly released documents confirm that no prosecutor was assigned to the case.

ICE is
the investigative arm of the Department of Homeland Security (DHS). It is
tasked with conducting criminal investigations; combating transnational crimes
that exploit legitimate trade, travel and financial systems; enforcing the
customs and immigration laws; and protecting the nation against criminal
and terror organizations. HSI was formed in 2010 throughthe unification of ICE's former
Offices of Investigations, Intelligence and International Affairs.

CHL readers will recall, for
example, the highly publicized return of an Assyrian limestone head fragment earlier this year when ICE ambiguously reported "one arrest" related to
Operation Lost Treasure--a police program focused on antiquities smuggling--but
announced no arrests, indictments, prosecutions, or convictions connected with
the illegal importation of the $1.2 million head from Iraq. The object had been
brought to the United States illegally in 2008 from the United Arab Emirates.

This "seize and send" policy is starkly revealed in
ICE's 2011 antiquities trafficking investigation, the details of which have now been revealed by documents
disclosed under the Freedom of Information Act (FOIA). CHL filed the FOIA request in September 2013.

ICE's investigation was part of the touted Operation Lost Treasure program. In place of grand jury indictments, ICE held
a photo-op ceremony in Washington, DC in
September 2013, returning the evidentiary fruits of its investigative work to Afghanistan.

The carefully redacted and cherry-picked documents released on July 31, 2015 show that authorities intercepted a small shipment passing through New Jersey's international airport during March 2011. The package contained a pitcher and ancient
gold objects, and HSI had reason to suspect a link to terrorism.

After the shipment arrived at the Central Air Cargo Examination Facility
(CACEF) at Newark Liberty International Airport, CBP notified the HSI Special Agent in Charge New York (HSI SAC/NY), "requesting assistance with the importation of possible smuggled cultural
property via express consignment (Fed Ex)," according to a police report
dated April 21, 2011.

According to a document titled "Case Agent Cultural Property
Art and Antiquities Repatriation Checklist," the import consisted of more
than simple housewares and jewelry from England. Instead, there were cultural heritage objects that included:

Oinochoe seized by ICE and sent to Afghanistan.

1. A late Roman
oinochoe, or wine pitcher, 5th-8th century A.D. of ovoid form with
reeded body and central band of figures within arched reserves, shaped
handle Height 4 (sic)

Authorities retained an appraiser who found that the retail values of
the objects totaled $29,000 USD, almost 30 times greater than the trifling £650 GBP ($1,048.94 USD) claimed by the importer
on the customs paperwork.

The objects had been devalued significantly, probably
to bypass the formal customs entry, the kind of entry typically used when importing goods for
commercial or resale purposes and the kind of entry that would have required more oversight. The importer likely
knew that devaluing the objects below $2000 would cause the shipment to be less eye-catching. The value threshold today for an informal customs entry is $2500.

According to the
appraiser, the values that should have been listed on the customs form
were:

An email sent by the CBP Supervisory
Officer assigned to Newark Liberty International Airport and dated April 22, 2011 explained that
officials actually seized two shipments in March 2011. In addition to the
oinochoe and the gold objects, which the customs officer initially believed to have been from the first century, authorities seized Iranian artifacts:

On April 21, 2011
Officer from CACEF-FedEx/UPS along with Special Agents from SAC/NY, El Dorado
Task Force (EDTF) Financial Group VI seized two cultural property shipments.

In one shipment UPS officers targeted and examined a shipment listed as
''Antique Decorative Persian Metalwork". Research by CBPO ... and ICE SA
... determined that the items were from around the 12th century and the
actual origin of the shipment to be Iran. The items were being shipped in violation
of the 1987 United States Executive Order 12613 imposing
an import embargo on Iranian origin goods and services.

In the second shipment FedEx officers targeted and examined a shipment coming
from Great Britain that was manifested as "BRASS JUGS PLATED
PENDANTS".

Examination of the shipment revealed a brass jug, gold colored
embossed plates and two gold colored pieces. Research by CBPO ..., ICE SA
... determined that these items were being brought in with a false country of
origin, undervalued and were from approximately 100 B.C. These items were
seized for being violation of 18 USC 545 - Smuggling Goods into the United
States."

Supervisory
Special Agent

Intellectual
Property Art and Antiquities Investigations

Department
of Homeland Security

The released documents reveal nothing further about the Iranian objects.

With regard to the shipment containing the jug and gold items, not only did the importer provide bogus descriptions and phony values on the customs paperwork, the importer also misleadingly claimed that the goods originated from Britain. Because the package had been shipped from the Walthamstow neighborhood in London, the importer probably hoped that he could get away with this misrepresentation.

An April 21, 2011 investigative report expounded on this legal violation. "On April 18, 2011, the SME [subject
matter expert] further elucidated that none of the items in this shipment could
have had Great Britain as a country of origin." As a result, the report recorded that "[t]his
importation contained a material false statement related to the country of
origin," It pointedly added, "Individuals who smuggle
cultural property often utilize false countries of origin to avoid Customs
scrutiny in order to import controlled antiquities. Listing a false country of
origin is a violation of 18 USC 542 (Material False Statement). If this
shipment was destined to an antiquities dealer, they should know and would be
responsible to know the country of origin. In this instance [it] is suspected
that the false country of origin listed as Great Britain was a known false
statement and a violation of 18 USC 545 (Smuggling). The shipment would be
subject to seizure under 19 USC 1595 a (c) (Introduction Contrary to
Law)."

The oinochoe and gold pieces were supposed to be delivered to a man living in New York City who resided at the same address as a registered New York corporation, referred to here simply as "Bactrian Global Enterprises" (BGE). DHS investigative report number 20 dated October 11, 2011, classified "BGE" as "a business that is suspected of antiquities smuggling and money laundering."

Concerns about smuggling, money laundering, and ties to terrorism almost certainly should have prompted a prosecutor to be assigned to the case. But the documents released by ICE reveal that no prosecutor was assigned. Whether ICE failed to ask for one or whether a U.S. Attorney's Office declined to assign one is unknown. What is known is that no prosecuting attorney was attached to a case flagged as one involving transnational felony conduct. A May 9, 2011 reply to an email sent a few days earlier from a chief CBP paralegal in the Office of Fines Penalties & Forfeitures explicitly confirmed that no attorney had been designated. The Paralegal Specialist asked if there was an Assistant U.S. Attorney involved. "No AUSA" was the dispiriting reply given.

By way of contrast, wildlife trafficking crimes, which are typically investigated by special agents of the U.S. Fish and Wildlife Service (USFWS), have designated prosecutors at the Justice Department's Environmental Crimes Section (ECS) available for consultation. Following the best practice of assigning a prosecuting attorney to a serious or complicated felony-level investigation, the Justice Department points out,"An ECS prosecutor often gets involved early in an investigation, such as when the investigator swears out a search warrant or when a grand jury’s investigative power is needed. Once the necessary evidence is collected, the prosecutor presents the case to the grand jury for indictment. After indictment, the prosecutor guides the case through complex white collar and environmental law issues and prepares it for trial." ECS prosecutors also partner and coordinate with front-line prosecutors based at U.S. Attorneys' offices.

Repouseé gold foil applique depicting antelopeseized by ICE and sent to Afghanistan

Because ICE failed to arrest, indict, prosecute, or convict any individuals connected with the 2011 investigation, CHL will not identify the names of those who imported the cultural heritage objects or disclose the specific address
where the shipment was bound.

With that said, ICE agents paid a
visit on September 16, 2011 to the Manhattan address of "BGE" on the pretense of
hand-delivering a property seizure notice prepared by a paralegal specialist
four days earlier. Delivering it "would be a perfect excuse for an
interview," a September 2, 2011 email divulged.Two federal agents arrived at the Chelsea residence and found an unassuming building, the kind of four-story low-rise that New Yorkers walk by each day
and never take a second look. Inside were unspecified antiquities. An agent summarized the encounter in a report dated October 11, 2011. (ICE redacted references to any names
in the original report):

On September 16, 2011,
Special Agents [ ] and [ ] conducted an interview with [ ]
located at [BGE] located at [ ] New York, NY 10011. The interview
contained but was not limited to the following topics of conversation: Special Agents [
] identified themselves [ ] and asked permission to enter… Permission
was granted and agents observed the address to be a basement level apartment of
approximately two large rooms. One room was set-up as a residential space where
two people appeared to be living. The second room appeared to be a large
storage room with a computer. Stored in the room there appeared to be large
quantities of crafts, jewelry and antiquities. [ ] stated that
he lived at the address with his cousin and that the apartment was the
location of a jewelry and craft business, and a real estate business. … [ ] relayed that
he and his father are in the business known as [BGE] together and he was able
to produce a business card attesting to this fact. The card also listed [
] the cousin living at the address, as an employee of [BGE]. [
] explained that the business is set-up to predominantly sell costume
jewelry and textiles.

SA [ ] stated he was there to deliver a seizure notice regarding an
importation previously destined for [ ] at the address. [ ]
stated that he was aware of it but that only his father knows about that
specific shipment. [ ] stated that
the merchandise for [BGE] comes from Pakistan. When asked specifically where
the antiquities come from [ ] interrupted the conversation and stated
that the antiquities were all from central Asia. [ ] was able to provide
that their Customs Broker's name is [ ]. [ ] also stated that
the shipment was sent to his father to sell on consignment and that his father
didn't know much about it. SA [ ] explained
to [ ] about the seizure notices and the accompanying paperwork and had
him sign a sheet acknowledging receipt of the hand carried mail.

That no one knew anything of consequence is a fair summary of this same interview as memorialized by an
HSI special agent's supplemental email dated October 5, 2011:

• He and his father are in the business together. They sell costume
jewelry and textiles.

• The father is the one
that knows about the shipment.

• He did not know
anything about the shipment.

• [ ] is their [customs] broker.

• There was another
individual that was a real estate business partner of the father but not
with ["BGE"]. Subject name was [ ] unknown proper spelling.

• [ ] stated
that the shipment was sent to sell on consignment and that the father didn't
know much about it."

Shortly after the
interview, and for reasons not explained in the released documents, government information networks rang with alarm. Documents confirm that on Wednesday, October
5, 2011 computer terminals at U.S. border entry points flashed warnings over the Treasury Enforcement Communications System (TECS):

"INDIVIDUAL IS
SUSPECTED OF DEALING IN ILLICIT CULTURAL PROPERTY DETAIN ALL SHIPMENTS AND IF
ENCOUNTERED CONTACTED CASE AGENT...."

"BUSINESS IS SUSPECTED OF DEALING IN ILLICIT CULTURAL PROPERTY BEING SMUGGLED FROM
AFGHANISTAN AND PAKISTAN. PLEASE DETAIN ALL SHIPMENTS AND CONTACT THE CASE
AGENT...."

Before HSI agents actually conducted their interview in Manhattan, they made an effort to secure
a search warrant for "BGE." But they never got one. That likely sparked the idea
of serving the property seizure notice as a justification for
visiting the importer.

Interestingly, ICE went outside the jurisdiction for help with getting a search warrant. Based on
the both the substance and style of a conversation archived in an email string sent on
the afternoon of May 10, 2011, one unidentified party, who could be an investigative agent based in the jurisdiction of the Southern District of New York (probably Manhattan), and the other unidentified party, who could be a
federal prosecutor in the Eastern District of New York (probably Brooklyn), spoke about the matter.

The email string revolves around a request for an email search warrant. The presumed agent wrote that he or she learned that the
suspect(s) already had been investigated for possible terrorism ties to
Afghanistan, smuggling, and money laundering. Those cases were closed, and now
there was a request for a fresh warrant. The emails offer the
following exchange:Agent: "I received this email a couple of months ago from a
source and the pieces being offered are straight out of the ground. I recently
seized a package in Newark destined for the address of ["Bactrian
Global"] but the ultimate consignee was [
]. When I inspected the shipment in person, the box (not
the shipping label) was addressed to [ ] the principle
behind ["Bactrian Global Enterprises"]."The shipment was seized because it contained a false C/O [country of
origin], and contained golden antiquities that were not declared. The shipment
was seized on 4/21/2011."Would this all be
recent and good enough for an email S/W [search warrant] in your opinion? If
so, would you do it or could you recommend someone? I can send the ROI [report
of investigation] related to the seizure and pictures if interested."

Prosecutor: "Is there any connection to the EDNY [Eastern
District of New York]? How much do you think these pieces are worth? True CDO
[country of declared origin]?"Agent: "True
C/O [country of origin] is most likely Iraq or somewhere in the middle east[,]
the expert couldn't give one country 100% but she was 100% certain it was not
GB [Great Britain]. Attached is the report. No estimate on value yet, but we
are pretty certain it is more than declared because they failed to declare much
of the shipment.

"Just learning that the
principles (sic) have prior (failed and closed) investigations into them for
money laundering, Cult. Prop. [cultural property] smuggling, and possible
terrorism ties to Afghanistan.

"Does the same source who
worked the UC op [undercover operation] that took place via JFK [Airport in New
York] work [in order to form some legal tie to the Eastern District of New York]? Also,
most of their shipments are via JFK. This one wasn't but it also used the wrong
name on the shipping label."Prosecutor: "I don't think we have venue here... I hate that there's dirt caked on them.
Though it's so dirty, it makes you wonder if they're trying to increase value
by faking a find."

Under the circumstances, a search warrant probably was not issued from the Eastern District of New
York because the suspects were located in Manhattan, in the Southern District
of New York. A specially assigned heritage trafficking prosecutor based at the Department of Justice in Washington probably could have facilitated this search warrant request by coordinating with the right U.S. Attorney's office. But no such specialist prosecutor exists.

So what
looked like a criminal investigation into antiquities trafficking quickly turned into a
seize and send case. Instead of holding the evidence and building the investigation for possible
grand jury review, indictment, and conviction after trial or plea, ICE sought title to the antiquities through the forfeiture process, eventually sending the cultural heritage
objects back to their country of origin. This seize and send disposition effectively terminated any chance of
successfully prosecuting those responsible for lying on the customs entry
paperwork.

An email dated January 25, 2012 from a Supervisory Legal Specialist at CBP
's Office of Fines, Penalties, and Forfeitures touched on this administrative process: "Please be advised that the cultural property in
FP&F Case #: [ ] associated with OI #: [ ] has
been administratively forfeited. I have attached the appraisal conducted on the
seizure of this merchandise so you can determine the repatriation of these
items to their rightful nations as per the seizure narrative of this
case.""Please send the seizure notice and Hold Harmless to [ ] Cultural
Attache[,] The Embassy of Afghanistan...," requested an HSI SAC/NY special agent in an email dated April
5, 2013.How Afghanistan and not Iraq
or Pakistan came to be identified as the true country of origin remains unknown from the
FOIA-released paperwork. Iraq had been mentioned as a possible country
of origin in the police reports, and a special agent from HSI SAC/NY mentioned Pakistan
in an email dated April 4, 2013, which pointed to the smuggling problem originating from South Asia. "You should see how much Afghan and
Pakistani material we have from the [ ] case," the agent exclaimed. An unclassified but redacted email dated April 2, 2013 by an
unknown government official echoed this troubling sentiment, "So much
material is flowing out of Afghanistan and Pakistan; it really is a
shame."Although the repatriation essentially concluded the case, one undated document from HSI's Office of
International Affairs insisted on the continuing nature of ICE's probe:

HSI New York's
Operation Lost Treasure is an ongoing investigation targeting
an organization smuggling items of world cultural heritage into the United
States. The objects enter the antiquities market and the proceeds are
laundered. Antiquities have been traced to Afghanistan, Iraq, Greece, Italy,
Egypt and Iran and the funds have been traced to Dubai and London. To date,
approximately 50 objects have been recovered with an estimated value of $2.5
million.

Whether ICE has probed this four year old case recently is unknown. What is known is that, according to NYS Department of State Division of Corporations Records,
"BGE" today lists its principal office on
the Upper West Side in New York City. "BGE," formed in 2006, is listed in the Yellow Pages as a home furnishings business that provides arts
and crafts supplies. The company is a likely outgrowth of a preceding import/export company begun in the 1980's and now dissolved. Persons connected with "BGE'" and the 2011 investigation appear to use aliases that are subtle variations of their names, and the Manhattan address where HSI agents once visited currently houses at least four registered real estate corporations and an unregistered soft
drink/grocery business, according to open source records. As of last month, an apparent relative of "BGE's" owner appears to have formed a brand new company at that address, which seems to be in the same type of business as"BGE."

HSI
Assistant Director John Connolly emphasized during the repatriation ceremony of the artifacts to Afghanistan how HSI is "beating back this
illicit trade through dedicated law enforcement efforts." But such a declaration remains inconsequential so long as crimes are committed and no perpetrators are brought before the courts. The participation of prosecutors are needed to do that. A designated group of specialist prosecutors working with HSI on their investigation may even have averted another "failed and closed investigation[]," as ICE put it, of cultural property trafficking.

Wildlife trafficking investigations should serve as a model for cultural heritage trafficking prosecutions. Because successful inroads have been made to combat this transnational crime, now more is being done. For the last five years, specialist prosecutors at ECS and their counterparts across the globe have been supported in their mission by the International Consortium on Combating Wildlife Crime (ICCWC), a group of five international organizations--including INTERPOL and the World Customs Organization. The ICCWC's mission is "to usher in a new era where perpetrators of serious wildlife and forest crime will face a formidable and coordinated response, rather than the present situation where the risk of detection and punishment is all too low." USFWS notes that the consortium "was formed to increase prosecution and punishment for caught smugglers and poachers."

Cultural heritage traffickers need to be prosecuted and punished too, and the inside look into ICE's 2011 seize and send case illustrates the point.

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"Rick St. Hilaire, who has become an authority on cultural heritage law, received the International Law Section’s 2014 Daniel Webster International Lawyer of the Year award at an Oct. 30 reception in Manchester, hosted by Sheehan Phinney Bass + Green." - NH Bar News, November 19, 2014

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